The opinion of the court was delivered by: MOTLEY
Defendants Belimex Corporation and Bernard Liebermann are charged in a six-count indictment, filed December 6, 1965 in the Southern District of New York, with having misrepresented to agencies of the Department of Commerce the ultimate destination of ball bearings for export, in violation of 18 U.S.C. § 80 (1946), prohibiting the making of knowing misrepresentations to government agencies.
The alleged misrepresentations are said to have been made in June, August, and September of 1948.
Defendant Belimex is a New York subsidiary of a European corporation established by Liebermann, in which he owns a controlling interest. Liebermann has never served as an officer or director of Belimex, however.
Belimex was incorporated in 1947. Since 1948, when its president and secretary (the only corporate officers) resigned, it has had no officers or directors. It has nevertheless continued to pay franchise taxes to New York State.
Defendant Liebermann, a French citizen, has resided continuously in Europe throughout his life. He did not appear personally in a Department of Commerce proceeding, related to the instant indictment, brought against him in 1948, although counsel appeared on his behalf. The last occasion when Liebermann was in the United States was in April, 1948, prior to the period when the acts charged in the indictment were alleged to have been performed.
Defendants move to dismiss the indictment on two grounds: first, that the indictment was not filed within the period provided by the applicable statute of limitations and, second, that the failure of the government to prosecute the indictment speedily violated defendants' rights under the Sixth Amendment to the Constitution. We need not reach the second ground since we agree with defendants that the statute of limitations has run.
The subject matter of the instant indictment arose out of a Department of Commerce administrative finding
of August 3, 1949 that Belimex Corporation, the corporation's secretary, and Liebermann had made a number of misrepresentations to the Department of Commerce in June, August, and September of 1948 regarding the ultimate destination of ball bearings to be exported by Belimex from the United States. Specifically, the two individuals and the corporation were found to have represented the ultimate destination of the goods as Belgium whereas they were, in fact, to be transshipped from Belgium to Czechoslovakia.
The Department of Commerce ruled that Belimex and Liebermann be barred from "obtaining, using or participating directly or indirectly in the obtaining or using of export licenses until the expiration of the Export Control Act of 1940,"
and that defendants' names be published continuously in the "Denial List of the United States Department of Commerce Export Control Regulations," the Department of Commerce blacklist, during that period.
An indictment issued on May 25, 1951 (C 135-276) charging defendants with violating 18 U.S.C. § 80 (1946).
A bench warrant was then issued for defendant Liebermann's arrest,
but was not executed. In accordance with the policy followed by the Office of the United States Attorney for the Southern District of New York at that time, neither defendant Liebermann nor Belimex was informed of the filing of the indictment and the issuance of the bench warrant, although defendant Liebermann's address was known to the government through the Department of Commerce Denial List.
The 1951 indictment was nolle prossed on October 27, 1964 due to Liebermann's "continuous European residence."
On December 6, 1965, the instant indictment, substantially identical to the 1951 indictment, was filed. Another bench warrant for Liebermann's arrest was issued under the new indictment.
Again neither defendant received notification of the filing of the indictment and the issuance of a warrant.
According to Liebermann he had no knowledge of either of the indictments filed against him until late in 1968. Throughout the period beginning in 1961 he made repeated extensive efforts to obtain a visitor's visa to come to the United States,
a fact that would tend to substantiate his claim that he was unaware of the charges pending against him here. Although his visa applications were consistently denied, he was unable to learn the reason for the denials except that they were based in part on 8 U.S.C. § 1182(a)(27) (1963), which provided for the exclusion of aliens who, "after entry, might engage in activities prejudicial to the public interest, or endanger the welfare, safety or security of the United States."
Liebermann was first told in late 1968 that an outstanding indictment against him in federal court in New York had been a basis for denial of his visa application. He then sought to ascertain the nature of the indictment and, having succeeded in doing so through his ...